DECISION NUMBER:

20230125

OBJECTING PARTY:

WORKER

REPRESENTED by:

WORKER REPRESENTATIVE

RESPONDENT:

EMPLOYER-PARTICIPATING

HEARING:

HEARING IN WRITING

HEARD by:

DATED

SUZANNE FLANNERY, APPEALS RESOLUTION OFFICER

JULY 28, 2023

ISSUE

The worker representative is objecting to the Eligibility Adjudicator’s (EA) decision dated July 23, 2022 that denied initial entitlement to benefits. The decision determined the worker had removed themselves from the course of their employment by being the aggressor in a fight at work.

BACKGROUND

On July 8, 2022, this welder was discussing the quality of their work with a lead hand and a senior lead hand. The lead hand had a discussion with the worker approximately 25 minutes prior to the event under review. The lead hand felt that there were quality problems with the parts that the worker had welded, and the worker disagreed. A follow up discussion about this occurred with both the lead hand and senior lead hand, during which time the worker threw their gloves to the ground and started to walk away; the lead hand pushed the worker causing them to land backwards on the ground, sustaining strains and contusions to their left hand and left hip.

On July 25, 2022, the EA denied entitlement to benefits in this case, citing that while the fight was over a work issue, the worker was deemed to be the aggressor by throwing their gloves on the ground, and therefore removed themselves from the course of their employment in that moment, and were not entitled to benefits.

The worker representative objected to this decision on October 24, 2022. The EA reconsidered their decision and upheld the July 25, 2022 decision. The EA reconsidered the decision again upon receipt of the Appeal Readiness Form and upheld the decision on March 22, 2023. The matter was referred to the Appeals Services Division for further review.

The matter before me is to determine if the worker has initial entitlement to benefits for strain injuries to their left hand and left hip.

AUTHORITY

Operational Policy Manual

Published

11-01-01 Adjudicative Process

November 3, 2008

15-03-11- Fighting, Horseplay and Larking

October 12, 2004

11-01-08 Audio/Visual Recordings

October 12, 2004

ANALYSIS

I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. The worker’s objection is allowed. I find the worker has initial entitlement to health care benefits for their left hip and left hand strain/contusion injuries.

The worker representative argues that the fight was over a work-related matter. They argue that the act of throwing their gloves to the ground and walking away was not an act of aggression, but rather frustration over the conversation related to their quality of work with the lead hands. They argue the worker was in the process of removing themselves from the scenario because they were upset, when they became the subject of an “unprovoked act of physical force.”

The employer is participating in this appeal. They have submitted the respondent form however have not provided any new information to review, and indicate they maintain their original position. Their position regarding entitlement to benefits was outlined in their letter of July 13, 2022 when they filed the claim to the Workplace Safety and Insurance Board (WSIB), where they opine the worker was the aggressor in this scenario because they threw their gloves on the ground.

Policy 11-01-01 Adjudicative Process, outlines the five criteria to be established for allowing initial entitlement to benefits as follows:

All decision-makers use the same criteria for ruling on initial entitlement to WSIB benefits. This system is known as the “five-point check system.”

An allowable claim must have the following five points

• an employer

• a worker

• a personal work-related injury

• proof of accident, and

• compatibility of the diagnosis to accident or disablement history

In summary, there is no dispute that there is an employer or worker in this case. There is also no argument surrounding proof of accident in this case, as there were witnesses to the incident, immediate reporting of injuries and immediate medical attention. There is no argument over the compatibility of the diagnosed left hand and hip strain/contusions, noting the worker was pushed to the ground with force. I find these injuries are compatible with the accident history of being pushed to the ground.

The point of contention is whether the worker suffered a personal work-related injury or not. Establishing the injury was work related requires confirming that the injury arose both out of their employment, and while in the course of their employment.

Policy 15-03-11 Fighting, Horseplay and Larking, provides the following direction applicable in this case. The policy states in part:

Workers who sustain a personal injury as a result of participating in a fight, horseplay or larking at work are generally not entitled to WSIB benefits.

The Workplace Safety and Insurance Act or the Workers' Compensation Act (the Act) does not provide coverage for workers who are injured while participating in a fight that results solely over a personal matter. However, if the fight results solely over work, the claim may be accepted if the injured worker

• was not the aggressor and did not provoke the fight, or

• was an innocent bystander.

Aggressors and participants in a fight take themselves out of the course of their employment. As such, an innocent injured worker has a right of third party action.

In review of the details provided by both the employer and the worker representative through their written statements of July 13 and October 24, 2022 respectively, there is agreement that the cause of the fight was over a work-related matter. The lead hand had approached the worker about the quality of the products the worker had welded, and the worker expressed disagreement with this. The lead hand then involved a senior lead hand in the conversation, where disagreement over the quality of the products welded by the worker continued to be discussed. I find this meets the criteria to consider the worker’s accident history further, as the fight was solely over a work-related matter, and there were no personal matters involved. This satisfies the criteria that the worker’s injury arose from their employment.

Policy 15-03-11 is very specific on entitlement being in order if the worker “was not the aggressor and did not provoke the fight, or was an innocent bystander.” The worker was not an innocent bystander as they were directly involved in the verbal discussions that occurred. Therefore, entitlement to benefits hinges on whether the worker was the aggressor in this accident history.

The policy does not define the term “aggressor”, and I find it necessary to rely upon what a reasonable person would interpret as an aggressor in a physical altercation or of a person who was under physical threat of harm. The presence of discourse between employees in the workplace is not new, and heated words exchanged between co-workers in the workplace does not automatically escalate into a physical exchange in most circumstances. In this case, the point of contention is over whether the act of the worker throwing their gloves to the ground was an act of aggression that a reasonable person would expect was the indicator of being a physical threat that would elicit the lead hand’s physical response against the worker. I find that the worker’s act of throwing their gloves to the ground was not an aggressive act that a reasonable person would interpret as a physical threat against them. For this reason, I find the worker was not the aggressor in this accident history, and therefore was in the course of their employment.

In coming to this conclusion, I rely upon the information provided by both parties. The employer’s letter dated July 13, 2022, confirms the worker threw their gloves to the ground and walked away. The worker representative submission dated October 24, 2022 also states that they threw their gloves to the ground in frustration and walked away. A witness provided a statement to the employer dated July 11, 2022, and they confirmed that the worker threw their gloves to the ground, and not at the lead hand directly. The employer’s letter of July 13, 2022 stated that the lead hand interpreted this action as an aggressive act against them. However, I again turn to what a reasonable person would interpret as an aggressive act, and not what the lead hand interpreted as an aggressive act. I find a reasonable person would not equate

gloves thrown to the ground in front of them as a physically aggressive act or a physical threat to their body.

Policy 11-01-08 Audio/Visual Recordings provides guidance on the use of videos and photos as evidence. The policy states in part:

The WSIB accepts audio/visual recordings as evidence, if they

• provide new or more complete information than is already in the claim file

• are relevant and pertain to the WSIB's duty to hear, examine, and decide issues under the Workplace Safety and Insurance Act, and

• are authenticated.

While there is mention in the file of video footage of the encounter, a video has not been provided. However, still photos of the video were provided for review, and the employer confirmed their authenticity. The worker has had access to the file and therefore has seen these photos. While I do not find these photos provide any confirmation of the tone of the exchange that occurred as outlined in the narrative the employer provided with the pictures, I do find that they demonstrate the physical proximity that each party was to each other at the time of the incident. The pictures show that the worker was physically close enough to the lead hand that if they wanted to or intended to throw their gloves at their lead hand as an aggressive or instigating act, they had every opportunity to do this, however they did not. All parties agree that the gloves went downward on the floor, not only in front of the lead hand, but also in relative proximity to the other lead hand that was there. For all these reasons, I find the worker’s act of throwing their gloves to the ground was not the act of an aggressor in this fight, and therefore the worker did not remove themselves from the course of their employment in that moment.

There is also information from the employer about the worker walking towards the lead hand after throwing their gloves to the ground, as an indicator that the lead hand may have felt the need to defend themselves. The file information gives no indication of the worker walking towards the lead hand with their arms up or extended towards the lead hand in any threatening motion. I find there are no indicators that would lead me to any other conclusion other than the worker was leaving the situation as they described in the October 24, 2022 submission. Even though this action involved walking in the direction of the lead hand, I again return to whether a reasonable person would interpret this to be an act of aggression in that moment. I conclude that a reasonable person would not feel under physical threat by a person walking by them while upset, as an act of physical aggression towards them. The worker has explained that the reason they walked away because they were upset and wanted to leave the situation and workplace over the heated discussion about their quality of work.

In summary, I find that the worker was not the aggressor in a fight over their work, and did not remove themselves from the course of their employment under policy 15-03-11 Fighting, Horseplay and Larking. As such, I find the worker did sustain personal work-related injuries to their left hip and hand that arose out of and in the course of the worker’s employment, and therefore all criteria under policy 11-01-01 Adjudicative Process have been met. As such, I find the worker has initial entitlement to health care benefits for left hip and left hand sprains/contusions.

CONCLUSION

The worker’s objection is allowed. I find the worker does have initial entitlement to health care benefits for a left hip and left hand strain/contusions.

The claim will be returned to the Operating area for review of entitlement to loss of earnings benefits and the duration of benefits that arise from this decision.

DATED July 28, 2023

Suzanne Flannery Appeals Resolution Officer Appeals Services Division